State v. Van

• Decision Date: 28 December 1911
• Citation: 44 Mont. 374
• Parties: STATE v. VAN.
• Court: Montana Supreme Court

44 Mont. 374

STATE

v.VAN.

Supreme Court of Montana.

Dec. 28, 1911.

Appeal from District Court, Dawson County; Sydney Sanner, Judge.

Oliver Van was convicted of grand larceny, and appeals. Affirmed.

See, also, 119 Pac. 1127.

C. C. Hurley and Loud & Campbell, for appellant. Albert J. Galen, Atty. Gen., J. A. Poore, Asst. Atty. Gen., and Frank P. Leiper, for the State.

HOLLOWAY, J.

The defendant was convicted of grand larceny, and appeals from the judgment and from an order denying him a new trial.

Appellant's counsel make 67 assignments of error, and in argument group them under 32 separate heads. To consider the questions thus raised separately and at any length would extend this opinion unnecessarily, and would not accomplish any useful purpose. Many of the assignments must necessarily be disposed of somewhat summarily.

1. Objection was made to the introduction in evidence of certain pelts (Exhibits B, C, D, and E). We think the identification of the exhibits was sufficient.

2. An objection, made by the county attorney to questions asked a witness for the state, on cross-examination, as to the character in which Mr. Dye, one of the alleged owners of the property in controversy, acted, was sustained, and error is predicated upon the ruling. The record discloses, however, that the witness afterwards gave substantially the same evidence as that sought by the questions, so that there was not any prejudice in the ruling, if erroneous.

3. Error is predicated upon the exclusion of Exhibits H and J. Neither exhibit is in the record or described, and it is therefore impossible for us to say whether error was committed. Bean v. Missoula Lumber Co., 40 Mont. 31, 104 Pac. 869;Tague v. John Caplice Co., 28 Mont. 51, 72 Pac. 297.

4. While the defendant was a witness in his own behalf, he was asked to state what Henry Chapman, his employé, told him about the property in controversy. An objection by the county attorney was sustained. There was not any offer of proof made, and we cannot determine whether error was committed in the ruling. Frederick v. Hale, 42 Mont. 153, 112 Pac. 70;Forquer v. North, 42 Mont. 272, 112 Pac. 439.

5. J. D. Wynn, a witness for the state, was asked to give a conversation had between himself and Henry Chapman. Without objection, the witness answered, and counsel for defendant then moved to strike out the answer. We have repeatedly held that this cannot be done. State v. Rhys, 40 Mont. 131, 105 Pac. 494.

6. The witness Wynn and one E. S. Herrick gave certain opinion testimony, which was objected to upon the ground that a proper foundation had not been laid. We think the witnesses showed themselves qualified as experts.

7. Objection was made to certain testimony given by the witness Leiper; but the evidence was clearly admissible as rebuttal. State v. Barrett, 43 Mont. 502, 117 Pac. 895.

8. In instructions 2 and 3, given, the court defined larceny in the language of the Codes. Objection is made that the element of felonious intent is omitted in each, and State v. Rechnitz, 20 Mont. 488, 52 Pac. 264,State v. McLeod, 35 Mont. 372, 89 Pac. 831, and other cases, are cited in support of the contention that this was error. But counsel overlook the fact that in instruction No. 5, given, the court told the jury that it was necessary for the state to prove the felonious intent beyond a reasonable doubt. The instructions are to be considered as a whole. The court is not held to state all the law applicable in a single paragraph of the charge. State v. Byrd, 41 Mont. 585, 111 Pac. 407.

9. An instruction defining reasonable doubt, similar to No. 26 given in this instance, was criticized by this court in State v. Crean, 43 Mont. 47, 114 Pac. 603, but it was held not reversible error to give it.

10. Defendant's offered instructions 6, 8, 9, 10, 15, 16, 20, 21, and 22 were properly refused, as the substance of each was covered by instructions given by the court. Townsend v. City of Butte, 41 Mont. 410, 109 Pac. 969.

11. Error is predicated upon the order of the trial court, denying a motion in arrest of judgment, and in refusing to direct the state to elect upon which count of the information it would proceed. “A motion in arrest of judgment must be founded upon some defect in the information.” State v. Tully, 31 Mont. 365, 78 Pac. 760.

The first count of this information charges that the defendant “did willfully, wrongfully, unlawfully and feloniously steal, take, drive and lead away seventy-five (75) head of sheep, the personal property” of Dye, Reed, and Parrott, of the value of $375, with the felonious intent to deprive and defraud the true owners of their property. Counsel for defendant argue that, while this first count may be sufficient to charge grand larceny at common law, it is entirely inadequate to charge the crime under section 8642, Revised Codes, and many authorities are cited in support of this contention. It is earnestly urged that the cases cited are peculiarly applicable, since the statutes construed are similar to our section 8642, above. This may all be conceded, for the purposes of this appeal, but without avail to defendant; for his counsel overlook the fact that subdivision 4 of section 8645, Revised Codes, also contains a definition of grand larceny; and that the allegations in the first count of this information are ample to bring it within that last definition.

The second count charges that the defendant did feloniously steal, withhold, and appropriate to his own use the 75 head of sheep, the property of Dye, Reed, and Parrott, of the value of $375, with the felonious intent to deprive and defraud the true owners of their property. This clearly charges grand larceny under the first subdivision of secton 8642, above, and section 8645, Revised Codes. Subdivision 1 of section 8642 specifies three methods by which larceny may be committed: (a) By taking the property from the possession of the owner or some other person; (b) by false pretenses; and (c) by secreting, withholding, or appropriating the property of another. The second count charges the offense by this third method. People v. Dumar, 106 N. Y. 502, 13 N. E. 325.

The third count charges that defendant, having these sheep in his possession as bailee of the owners, feloniously appropriated them to his own use, with the intent to deprive the true owners of the same. This count was drawn under subdivision 2 of section 8642, above. It follows the language of the statute, and is sufficient. State v. Brown, 38 Mont. 309, 99 Pac. 954;State v. Stickney, 29 Mont. 523, 75 Pac. 201.

Since each count of this information is sufficient, the motion in arrest of judgment was properly denied.

The motion to compel the election was addressed to the sound legal discretion of the trial court, and its ruling will not be disturbed, in the absence of a showing that there was a manifest abuse of discretion Armstrong v. People, 70 N. Y. 38;Short v. State, 63 Ind. 376;Bailey v. State, 4 Ohio St. 441;Roberts v. People, 11 Colo. 213, 17 Pac. 637.

12. The motion for a directed verdict and the motion for a new trial present the question, Is the evidence sufficient to sustain the verdict? Counsel for appellant argue with much force that the state failed to prove the ownership of the property as alleged in the information. It is charged that the sheep in question were the property of Dye, Reed, and Parrott. Neither of these persons was called as a witness, but the state relied for proof of ownership entirely upon circumstantial evidence.

Preston Willson testified that in the fall of 1909 he purchased something over 8,000 head of sheep for Dye, Reed, and Parrott, and managed the sheep for them for a short time; that in August, 1910, he was again employed to assist in a division of the...